WEBVTT - A Total System Failure 0:00:02.680 --> 0:00:06.080 Just before nine o'clock last night, the jury returned guilty 0:00:06.160 --> 0:00:10.080 verdicts against all three defendants. It was absolute shambles, to 0:00:10.119 --> 0:00:12.480 tell you the truth, just absolutely really coming. 0:00:12.240 --> 0:00:15.000 Blood on his clothing. The day after the alleged. 0:00:14.640 --> 0:00:16.439 Atap on a show a mud bank and it fits 0:00:16.440 --> 0:00:16.960 through a river. 0:00:17.079 --> 0:00:19.119 Basically, I think most of the people are used to 0:00:19.200 --> 0:00:20.600 me are good people. 0:00:20.640 --> 0:00:23.280 I think a really important question we need to ask 0:00:23.480 --> 0:00:26.360 is how many Indigenous prisoners in Australia are innocent. 0:00:27.280 --> 0:00:29.880 This is Curtain, a podcast where we pull back the 0:00:29.920 --> 0:00:32.440 blinds to shine a light on the darkest parts of 0:00:32.479 --> 0:00:36.240 our justice system and ask who are the victims. I'm 0:00:36.240 --> 0:00:38.879 Amy Maguire and I'm. 0:00:38.720 --> 0:00:43.040 Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service. 0:00:43.400 --> 0:00:47.160 And a warning. This series contains the names of deceased 0:00:47.159 --> 0:00:51.680 peoples and has distressing content that might upset some listeners. 0:00:52.520 --> 0:00:54.120 What went wrong and how can we fix it? When 0:00:54.160 --> 0:00:56.560 there's a total system failure? And that's what the conviction 0:00:56.640 --> 0:00:59.800 of an innocent is a total system failure. What we 0:00:59.880 --> 0:01:03.200 do is use DNA testing to get people out of 0:01:03.280 --> 0:01:06.600 jail who did not commit the crimes. It really began 0:01:06.720 --> 0:01:10.680 for us in a case nineteen eighty seven eighty eight 0:01:11.200 --> 0:01:16.160 involving an inmate named Marion Cochley who was wrongfully convicted 0:01:16.240 --> 0:01:19.880 of a robbery rape in the Bronx. And in that 0:01:20.040 --> 0:01:23.160 case we tried to use DNA testing, and this was 0:01:23.200 --> 0:01:25.480 before DNA testing was even in the courts. It was 0:01:25.560 --> 0:01:30.399 nineteen eighty eight, and there was not enough high molecular 0:01:30.440 --> 0:01:33.479 weight DNA to get a result. But we realized from 0:01:33.560 --> 0:01:39.720 that moment that this could be a transformative technology and 0:01:39.840 --> 0:01:42.399 it would be able to exonerate a lot of innocent people, 0:01:42.440 --> 0:01:45.680 would be able to apprehend the real perpetrators, and it 0:01:45.720 --> 0:01:48.280 also would shine a window on what we believed were 0:01:48.400 --> 0:01:51.880 lots of wrongful convictions. My colleague Peter Neufeld and I 0:01:51.960 --> 0:01:57.400 we actually knew from the very beginning that there were many, 0:01:57.440 --> 0:02:00.520 many more wrongfully convicted people than anybody lived, and the 0:02:00.600 --> 0:02:04.400 DNA can demonstrated. We knew that, but obviously when you 0:02:04.440 --> 0:02:08.280 live through it and you start seeing this one after another, ah, 0:02:08.919 --> 0:02:10.000 it's quite extraordinary. 0:02:10.200 --> 0:02:14.800 Welcome to episode twenty four of Curtin the podcast that 0:02:14.960 --> 0:02:18.840 was Barry Shack from the Innocence Project. He has more 0:02:18.919 --> 0:02:25.040 than forty years experience in addressing wrongful convictions. In fact, 0:02:25.200 --> 0:02:29.680 he's overturned more wrongful convictions than any other lawyer on earth. 0:02:30.760 --> 0:02:35.080 He studied at both Yale and UC Berkeley's School of Law, 0:02:35.760 --> 0:02:38.639 so to say that he is qualified in this area 0:02:38.880 --> 0:02:42.919 is an understatement. Last week we spoke about how a 0:02:43.040 --> 0:02:48.400 jury found Kevin Henry guilty beyond a reasonable doubt. Clearly, 0:02:48.760 --> 0:02:52.440 with all the evidence you've heard, we feel, and from 0:02:52.480 --> 0:02:55.120 the feedback we've heard from all of you, is that 0:02:55.240 --> 0:02:59.040 it's very difficult to understand how Kevin Henry could possibly 0:02:59.120 --> 0:03:03.920 have been found guilty. So, as mister Sheck says, something 0:03:04.000 --> 0:03:07.360 must have gone wrong. And this week we're going to 0:03:07.440 --> 0:03:11.440 highlight how it's possible for someone to be found guilty 0:03:11.520 --> 0:03:15.600 beyond a reasonable doubt even when it's quite clear from 0:03:15.600 --> 0:03:19.000 all the evidence that they didn't commit the crime. 0:03:20.560 --> 0:03:23.200 In this episode, we're going to go back to the 0:03:23.200 --> 0:03:27.000 court transcripts. Now we're going to outline three cases of 0:03:27.120 --> 0:03:31.160 failure in the justice system that led to the ultimate 0:03:31.280 --> 0:03:35.120 system failure, the conviction of an innocent Aboriginal man who 0:03:35.200 --> 0:03:38.040 stayed locked up in jail for over a quarter of 0:03:38.080 --> 0:03:43.000 a century. Martin. What's the first of those failures? 0:03:45.040 --> 0:03:47.760 Okay, so one of the failures that I think really 0:03:47.760 --> 0:03:51.320 occurred in this trial was that of the forensic evidence 0:03:51.360 --> 0:03:55.680 that was presented. Now, previously we've gone over the issues 0:03:55.720 --> 0:04:00.840 of blood, the way the blood was examined, the body 0:04:01.040 --> 0:04:05.000 was examined, issues to do with the way forensic evidence 0:04:05.240 --> 0:04:09.400 was collected. But as we've spoken about throughout this podcast, 0:04:10.160 --> 0:04:14.360 very clearly, the tides in the river played a crucial factor, 0:04:15.280 --> 0:04:18.960 and present at the trial and giving evidence was a 0:04:18.960 --> 0:04:23.120 gentleman called as an expert in this area. So to 0:04:23.200 --> 0:04:27.120 address this and in summarizing just how important tides were 0:04:27.760 --> 0:04:31.680 to the case, particularly the murder charge, the judge included 0:04:31.720 --> 0:04:36.359 this statement in his summation. Clearly in relation to the 0:04:36.440 --> 0:04:39.920 charge of murder, the critical issue that is raised by 0:04:39.920 --> 0:04:44.159 mister Murray on Kevin Henry's behalf is the contention that 0:04:44.240 --> 0:04:46.920 it was not Henry who threw her into the river. 0:04:47.560 --> 0:04:50.839 And it seemed to me tides are relevant to this, 0:04:51.400 --> 0:04:55.359 and I would remind you of them. Now. The judge 0:04:55.360 --> 0:04:59.120 would go on to explain quite a bit of detail 0:04:59.279 --> 0:05:03.080 as to what was presented about the tides and why 0:05:03.120 --> 0:05:06.200 they were so critical, But rather than read all of that, 0:05:06.320 --> 0:05:11.839 I'll quickly remind you remember, as we explained that, as 0:05:11.920 --> 0:05:16.680 everyone agrees, if Linda's body was placed into the river 0:05:17.480 --> 0:05:20.200 at the time Kevin Henry is alleged to have done it, 0:05:20.839 --> 0:05:23.640 he would have had to do so by walking through 0:05:24.240 --> 0:05:28.080 deep mud that came up to at least his knees, 0:05:28.120 --> 0:05:31.480 perhaps higher, and he would have had to have gotten wet. 0:05:31.960 --> 0:05:36.599 And nowhere was any mud or any water stains found 0:05:36.600 --> 0:05:40.120 on his shoes or any clothes that he was wearing, 0:05:40.360 --> 0:05:42.880 and there was no evidence he ever went into the river. 0:05:43.680 --> 0:05:47.640 The tides also impact on where the body was found, 0:05:48.360 --> 0:05:52.480 and the tides, as we've discussed in previous episodes, also 0:05:52.640 --> 0:05:56.480 help us show that not only did Kevin not place 0:05:56.680 --> 0:05:59.720 Linda's body in the river, but that the body was 0:05:59.720 --> 0:06:03.279 played on the racecourse side of the river, not the 0:06:03.320 --> 0:06:08.600 Tanuba House side of the river. And again, as I discussed, 0:06:08.720 --> 0:06:12.680 a witness was called to deal with this very issue. 0:06:12.760 --> 0:06:15.400 You would assume that a witness called on this issue, 0:06:15.440 --> 0:06:18.760 and this issue of tides alone, a witness who was 0:06:19.000 --> 0:06:24.120 local to Rockhampton and working for the Queensland Government in 0:06:24.160 --> 0:06:27.479 a capacity that placed them on the river daily would 0:06:27.640 --> 0:06:32.680 understand the tides of the river very well. But this 0:06:32.800 --> 0:06:37.479 witness didn't, and this was an expert witness. In attempting 0:06:37.520 --> 0:06:41.440 to explain the tides of the day the September on 0:06:42.279 --> 0:06:46.400 the night of Linda's murder, the witness kept referring to 0:06:46.480 --> 0:06:50.600 the thirty first of August, the Friday, and the judge 0:06:50.720 --> 0:06:54.880 was forced to bring them back to the first of September, 0:06:55.040 --> 0:06:59.680 the crucial day, the day it matters. And then this 0:06:59.720 --> 0:07:04.400 expert detailed the tide times, and it was the judge 0:07:04.520 --> 0:07:08.160 no one else who picked up something was wrong. And 0:07:08.200 --> 0:07:12.000 this is what his honor said. You have got them 0:07:12.080 --> 0:07:15.480 reversed for each day. You see, the high tide on 0:07:15.520 --> 0:07:19.640 the thirty first was at one thirty PM. That's the 0:07:19.680 --> 0:07:25.120 first high tide answer, that's right. Then there is a 0:07:25.160 --> 0:07:28.800 low tide at eight thirty seven PM, and a high 0:07:28.840 --> 0:07:33.200 tide at one forty one PM, and the first and 0:07:33.280 --> 0:07:36.680 a low tide at eight point fifty am on the 0:07:36.760 --> 0:07:41.440 first answer. That's correct. Now, the exact details of all 0:07:41.480 --> 0:07:45.040 the tides and times I just mentioned is not important. 0:07:45.720 --> 0:07:51.480 What's important is the judge was forced to clarify that, 0:07:51.560 --> 0:07:54.840 in fact, this expert witness was getting the high tides 0:07:54.880 --> 0:07:57.760 and the low tides around the wrong way, and he 0:07:57.840 --> 0:08:02.480 was getting AM and PM around the wrong way. Later 0:08:02.640 --> 0:08:06.720 in this expert's testimony, which went on for a considerable 0:08:06.760 --> 0:08:11.400 period of time, the expert was asked to identify on 0:08:11.520 --> 0:08:15.880 a photo where the tide would have been when the 0:08:15.920 --> 0:08:19.800 police accused Kevin Henry of placing Linda's body in the water. 0:08:20.400 --> 0:08:22.920 And the reason the court needed to know this, and 0:08:22.960 --> 0:08:25.600 the reason we all need to know this is so 0:08:25.720 --> 0:08:28.840 we could tell how far through the mud Kevin would 0:08:28.840 --> 0:08:33.040 have to walk. But the expert witness couldn't do it. 0:08:34.120 --> 0:08:38.000 This is what happened when the witness was asked about 0:08:38.040 --> 0:08:42.120 these figures after repeat failures. These are figures that relate 0:08:42.240 --> 0:08:46.800 to high and low tide. Question, are you familiar with 0:08:46.880 --> 0:08:51.440 the title heights at that time? Answer by the expert 0:08:51.840 --> 0:08:54.640 not as far as figures go. I can't give you 0:08:54.720 --> 0:08:58.679 a tide figure. No, that is the answer from an 0:08:58.720 --> 0:09:04.400 expert witness. Their entire job for this trial was precisely, 0:09:04.920 --> 0:09:09.559 if nothing else but to give that figure. And all 0:09:09.600 --> 0:09:13.400 they would have needed was a tide chart. Now I 0:09:13.520 --> 0:09:17.120 have one in front of me right now, and I 0:09:17.160 --> 0:09:19.720 will read to you what the tide is right now 0:09:20.040 --> 0:09:24.080 in Rockhampton. The tide is two point one meters and 0:09:24.120 --> 0:09:29.400 the tide is falling now. Of course I've read this 0:09:29.600 --> 0:09:33.520 from a title chart taken from the Internet, but tide 0:09:33.640 --> 0:09:37.199 charts taken the exact same way using the same equipment 0:09:37.720 --> 0:09:41.520 were available at the time at almost any fishing store, 0:09:42.040 --> 0:09:46.199 and certainly available to this expert witness who did this 0:09:46.280 --> 0:09:50.920 for a job. In fact, a brief study of tides 0:09:51.480 --> 0:09:58.080 shows that the Egyptians knew the height of tides three 0:09:58.160 --> 0:10:01.439 hundred and fifty six years before or the birth of Christ. 0:10:02.160 --> 0:10:05.800 We are not asking for new technology to have been used. 0:10:06.160 --> 0:10:09.640 This is information that is available to all and has 0:10:09.720 --> 0:10:14.600 been for centuries. Now. There's one more point that needs 0:10:14.640 --> 0:10:18.560 to be raised, as the judge tried to clarify the 0:10:18.600 --> 0:10:23.760 issue of tides and why he was so insistent when 0:10:23.760 --> 0:10:26.560 he was explaining to the jury they needed to remember 0:10:26.679 --> 0:10:30.960 what had been said, is that the expert also admitted 0:10:31.360 --> 0:10:35.320 he was not using the tides from Rockhampton. They took 0:10:35.440 --> 0:10:39.720 the tide times and the tide heights that they got wrong, 0:10:40.200 --> 0:10:43.960 but nonetheless used the tide times and tide heights from 0:10:44.000 --> 0:10:52.880 another location about thirty minutes drive from Rockhampton. But tides 0:10:53.040 --> 0:10:57.240 change depending on location, and so I'll tell you what 0:10:57.400 --> 0:11:03.440 those tides are, right Now as I record this, the 0:11:03.600 --> 0:11:08.319 tide in Rockhampton is two meters and falling. It has 0:11:08.400 --> 0:11:12.720 two and a half hours until the low tide. At 0:11:12.760 --> 0:11:18.560 the location that the expert witness used for the tides 0:11:19.280 --> 0:11:23.440 for this case that occurred in Rockhampton, the tide is 0:11:23.480 --> 0:11:29.680 currently one point six meters and rising. They are not 0:11:29.840 --> 0:11:35.920 the same. One is rising, one is falling, and their 0:11:36.040 --> 0:11:40.360 heights are different. The water is moving in two different 0:11:40.400 --> 0:11:44.440 directions based on the locations, and the height of the 0:11:44.480 --> 0:11:49.640 tide is different. This expert testimony is not expert at all. 0:11:50.160 --> 0:11:54.600 Despite the fact the judge was so insistent that tide 0:11:54.600 --> 0:11:58.440 times and tide heights were so important in this case, 0:11:59.200 --> 0:12:03.560 and as you know from listening to this podcast, tides 0:12:03.760 --> 0:12:08.360 were crucial. They would have proven that Kevin Henry could 0:12:08.400 --> 0:12:12.679 not possibly have placed the body of Linda in the water. 0:12:13.720 --> 0:12:16.719 That seems like a huge oversight. Did the prosecution or 0:12:16.760 --> 0:12:18.000 defense pick that up, Martin. 0:12:19.360 --> 0:12:24.960 Unfortunately they didn't, And the judge actually talked about this 0:12:26.440 --> 0:12:30.960 not only during the trial itself, but during his summation, 0:12:31.480 --> 0:12:36.880 and he said he believed counsel would have considered it 0:12:37.160 --> 0:12:42.640 more in cross examination. So the judge himself was quite 0:12:42.679 --> 0:12:46.160 confused as to a how there was this expert getting 0:12:46.440 --> 0:12:49.920 issues such as AM and PM wrong, low and high 0:12:50.040 --> 0:12:53.280 tides wrong. The judge was also confused as to why 0:12:53.400 --> 0:12:57.400 was this not raised by the lawyers involved, particularly the 0:12:57.480 --> 0:13:03.360 lawyers representing Kevin Henry. Again, this was a complete failure, Mardin. 0:13:03.400 --> 0:13:07.880 We promised Elliston as three examples of system failure. What 0:13:08.040 --> 0:13:09.280 is the second one? 0:13:09.559 --> 0:13:13.720 Okay? So the second failure has to do again with 0:13:14.640 --> 0:13:19.400 forensic evidence, but more importantly a failure on the defense's behalf, 0:13:19.520 --> 0:13:25.440 those representing Kevin Henry. The defense ran an argument that 0:13:25.760 --> 0:13:31.120 Linda may have been intoxicated that night. Now, it was 0:13:31.240 --> 0:13:34.080 known to all, or should have been known to all, 0:13:34.480 --> 0:13:39.040 that Linda was not intoxicated at all. Her blood alcohol 0:13:39.640 --> 0:13:43.680 was zero. The only things she had in her system 0:13:44.040 --> 0:13:47.800 were traces of the medication she was using to treat 0:13:47.880 --> 0:13:51.600 her illness. She had no drugs in her system and 0:13:51.720 --> 0:13:56.559 no alcohol in her system. Now, why it was assumed 0:13:56.720 --> 0:14:00.480 that Linda was drunk can be summed up in two ways. 0:14:01.360 --> 0:14:06.480 Either a failure on behalf of all involved to read 0:14:06.559 --> 0:14:10.720 the forensic report that clearly stated Linda had zero alcohol 0:14:10.800 --> 0:14:16.000 in her system, or it was assumed that Linda, like 0:14:16.400 --> 0:14:19.520 many of the people, in fact, everyone else at Tanuba 0:14:19.600 --> 0:14:23.680 House that night had been drinking. She had not. An 0:14:23.720 --> 0:14:28.600 assumption of this kind is simply unacceptable in all matters. 0:14:28.920 --> 0:14:32.280 But when Linda had lost her life, the assumption that 0:14:32.360 --> 0:14:37.680 she was drunk like everyone else is a disgusting association 0:14:37.840 --> 0:14:41.480 to make with Aboriginal people and Aboriginal women that they 0:14:41.520 --> 0:14:44.960 would have to be drunk no matter what, And it's 0:14:45.000 --> 0:14:50.240 a complete disregard for Linda's rights as the victim. But 0:14:50.320 --> 0:14:55.080 the way it impacted on Kevin Henry's trial was that 0:14:55.120 --> 0:14:59.000 the defense ran the argument that much of the forensic 0:14:59.040 --> 0:15:05.840 evidence could have been wrong if Linda was intoxicated, and 0:15:06.160 --> 0:15:10.960 the pathologist agreed with this issue, And the pathologist went 0:15:11.040 --> 0:15:13.720 on for a number of pages in the transcript, So 0:15:13.760 --> 0:15:17.160 we're talking at least ten minutes with a whole bunch 0:15:17.240 --> 0:15:20.960 of scenarios of what could have happened that night if 0:15:21.000 --> 0:15:25.040 Linda had been drunk. At no point at that part 0:15:25.040 --> 0:15:29.240 of the trial did anyone intervene, knowing full well Linda 0:15:29.280 --> 0:15:32.360 had zero blood alcohol, to say that it was not 0:15:32.920 --> 0:15:39.960 the case. Now, it was clarified later on when the 0:15:39.960 --> 0:15:43.560 prosecutor realized the mistake and it was in fact the 0:15:43.600 --> 0:15:47.560 prosecutor's error. In the first place, he had the certificate 0:15:47.680 --> 0:15:52.400 that showed Linda had zero intoxication, and he should have 0:15:52.440 --> 0:15:55.960 presented it as evidence before the court, and he was 0:15:56.000 --> 0:15:59.800 scolded by the judge for not doing so. But all 0:15:59.800 --> 0:16:05.440 involved should have been aware. Now much of the evidence 0:16:05.800 --> 0:16:11.680 that the pathologist gave about Linda potentially being intoxicated would 0:16:11.800 --> 0:16:17.080 have helped Kevin Henry, and the defense had managed to 0:16:17.120 --> 0:16:20.160 get that on record. Even though they got it on 0:16:20.280 --> 0:16:25.160 record in error, they did get it on record and 0:16:25.200 --> 0:16:29.400 it did assist Kevin Henry. And so when the prosecutor 0:16:29.880 --> 0:16:33.440 asked to place the evidence that Linda was not intoxicated 0:16:33.560 --> 0:16:37.120 on the record, the judge did not wish to grant 0:16:37.160 --> 0:16:41.960 that because it was the prosecution's mistake. Beneficial evidence had 0:16:42.000 --> 0:16:46.280 been provided on Kevin Henry's behalf, and yet the prosecution 0:16:46.640 --> 0:16:50.840 insisted that they would recall this witness and have another 0:16:50.920 --> 0:16:56.440 go at getting in this information about Linda's intoxication. The 0:16:56.520 --> 0:17:03.120 lawyer for Amy Saunders objected, and the judge agreed that 0:17:03.520 --> 0:17:07.080 the prosecutor was at fault. It is the Crown the 0:17:07.119 --> 0:17:10.560 prosecutor's job to prove beyond a reasonable doubt that Kevin 0:17:10.560 --> 0:17:14.280 Henry committed this crime and the prosecutor had made an 0:17:14.359 --> 0:17:17.120 error and Kevin Henry shouldn't have to suffer for it. 0:17:18.000 --> 0:17:23.119 But when the judge asked the defense attorney, mister Murray, 0:17:23.359 --> 0:17:27.400 Kevin Henry's barrister, if he objected to this new evidence, 0:17:28.320 --> 0:17:32.040 mister Murray said no, he did not object, and he 0:17:32.119 --> 0:17:35.040 allowed this witness to be called back to the stand 0:17:36.000 --> 0:17:40.639 to clarify the error. And because that was done, that 0:17:40.800 --> 0:17:45.200 had tried to dismiss the idea of Kevin Henry being 0:17:45.240 --> 0:17:52.359 involved based on that particular pathological evidence was ruined because 0:17:52.440 --> 0:17:55.600 all he'd done was based the assumption that Linda had 0:17:55.600 --> 0:17:58.960 been drunk. There was clearly other avenues he could have 0:17:59.040 --> 0:18:03.800 gone down. He didn't because of an assumption or because 0:18:04.240 --> 0:18:10.200 of a lazy error. So remember, Kevin Henry had evidence 0:18:10.240 --> 0:18:14.000 presented on his behalf that helped him, and that was 0:18:14.040 --> 0:18:18.480 the judge who agreed this. The prosecutor admitted he made 0:18:18.520 --> 0:18:23.440 a mistake, but Kevin Henry's own lawyer allowed that mistake 0:18:23.480 --> 0:18:26.960 to be corrected that should have never taken place. 0:18:29.040 --> 0:18:30.959 One of the problems I have with this point is 0:18:31.000 --> 0:18:35.040 that what would have ultimately helped Kevin was based on 0:18:35.600 --> 0:18:38.040 an error of the prosecution, which was based on a 0:18:38.080 --> 0:18:43.919 fundamental untruth about Linda the victim. How does this work, 0:18:44.720 --> 0:18:49.720 because surely it speaks to the real complexity in the 0:18:49.880 --> 0:18:53.480 justice system that this sort of untruth about an Aboriginal 0:18:53.520 --> 0:18:58.480 woman could have ultimately helped Kevin Henry in the end. 0:19:00.200 --> 0:19:02.640 Yeah, it's a very good point. I think there's two 0:19:02.680 --> 0:19:08.280 ways of answering that. First is that it's the crown's obligation, 0:19:08.960 --> 0:19:12.680 that being the prosecutor, to prove beyond a reasonable doubt 0:19:13.480 --> 0:19:17.919 that Kevin Henry was guilty. So if that prosecutor makes 0:19:17.920 --> 0:19:21.840 an error that provides doubt, then that doubt is to 0:19:21.880 --> 0:19:25.720 go in mister Henry's favor. But you raise a very 0:19:25.760 --> 0:19:29.840 good point, which is that that doubt was raised on 0:19:29.920 --> 0:19:33.720 an untruth. Now it still should have been left to stand, 0:19:34.040 --> 0:19:37.520 but it wasn't. So let's deal with the untruth and 0:19:37.560 --> 0:19:42.400 the issue with that and why it still impacts mister Henry. 0:19:43.720 --> 0:19:50.200 Mister Henry's evidence did not require Linda to have been intoxicated, 0:19:51.280 --> 0:19:56.480 so the correct forensic evidence could have been presented to 0:19:56.520 --> 0:20:01.120 the pathologist about why it was not possible for mister 0:20:01.200 --> 0:20:04.760 Henry to have committed this crime, even if Linda was 0:20:04.960 --> 0:20:12.720 accurately described as not intoxicated. But because not only the prosecutor, 0:20:12.800 --> 0:20:16.199 but the defense had both assumed that Linda was in 0:20:16.240 --> 0:20:22.080 fact intoxicated at this time, all arguments presented for mister 0:20:22.160 --> 0:20:26.879 Henry were simply inaccurate because again they were based on 0:20:27.000 --> 0:20:32.880 this falsehood. So the assumption or the error, which one, 0:20:32.920 --> 0:20:36.760 it doesn't really matter that Linda was intoxicated when she 0:20:36.960 --> 0:20:42.159 wasn't A harms Linda's reputation and she is the victim 0:20:42.200 --> 0:20:46.720 here and that he's completely unacceptable and B meant the 0:20:46.800 --> 0:20:50.639 defense went down the wrong path, a path that would 0:20:50.640 --> 0:20:54.560 be corrected when had they done their homework, they could 0:20:54.600 --> 0:20:59.159 have easily presented forensic evidence that would have shown Kevin 0:20:59.200 --> 0:21:04.840 could not have committed this crime even if Linda wasn't intoxicated, 0:21:05.160 --> 0:21:10.560 and she wasn't. So that's why this misstruth, this assumption, 0:21:10.880 --> 0:21:16.600 this racist suggestion about Linda harmed both Kevin Henry and 0:21:16.720 --> 0:21:18.840 harmed Linda Mardin. 0:21:18.920 --> 0:21:21.960 We've already heard two the systems failures, one regarding the 0:21:22.040 --> 0:21:26.679 title levels and the experts and the other regarding Linda's 0:21:26.720 --> 0:21:29.920 intoxication levels. What was the third failure. 0:21:31.320 --> 0:21:35.600 Okay, the third is perhaps the most important. We have 0:21:35.720 --> 0:21:40.439 to remember that Kevin Henry was on trial with the 0:21:40.480 --> 0:21:43.080 two of the women who would later be found guilty 0:21:43.920 --> 0:21:48.040 of grievous bodily harm. That's Amy Saunders and Susan Aubrey. 0:21:48.560 --> 0:21:52.840 They committed the vicious assault against Linda, to which there 0:21:52.920 --> 0:21:57.840 was a bunch of forensic evidence, witnesses, their own admission, 0:21:58.240 --> 0:22:02.600 there was simply no doubt that this occurred. But in 0:22:02.680 --> 0:22:06.800 Kevin Henry's case, there was no forensic evidence pointing to him, 0:22:07.200 --> 0:22:12.399 there was no eyewitnesses, and so throughout the trial the 0:22:12.520 --> 0:22:18.080 judge raised great concern that Kevin was being tried alongside 0:22:18.320 --> 0:22:23.360 the women, and that perhaps his lawyers should consider separating 0:22:23.440 --> 0:22:27.399 out the trial so that the two women stood trial 0:22:27.440 --> 0:22:31.600 together and Kevin Henry stood trial on his own. Now, 0:22:31.640 --> 0:22:35.479 at each point this was offered up, those representing Kevin 0:22:35.760 --> 0:22:38.840 said no, they wished it to continue as it was. 0:22:40.240 --> 0:22:43.600 But at one point, quite late in the trial, with 0:22:43.760 --> 0:22:47.040 only one or two witnesses left to be called, the 0:22:47.119 --> 0:22:51.840 judge was clearly concerned. And that's because a statement given 0:22:51.880 --> 0:22:56.040 by Susan Aubrey was accepted by the prosecution and the 0:22:56.119 --> 0:23:01.560 defense during the trial to be inaccurate, to be inadmissible 0:23:01.960 --> 0:23:04.959 and unlawful because of the way that it was taken 0:23:05.359 --> 0:23:07.439 and because of the lies that were told in it. 0:23:07.760 --> 0:23:10.800 The judge at this point instructed the jury that what 0:23:11.000 --> 0:23:16.040 they'd heard her say, those lies about Kevin Henry, could 0:23:16.119 --> 0:23:20.560 not be used against Kevin Henry, and that they must 0:23:20.600 --> 0:23:24.280 dismiss them. But of course, as we all know, once 0:23:24.320 --> 0:23:27.640 you've heard something, even if you're now told it's a lie, 0:23:28.359 --> 0:23:31.439 it could be hard to dismiss. You can't simply forget 0:23:31.480 --> 0:23:34.800 it and pretend you've never heard it. And so the 0:23:34.920 --> 0:23:39.760 judge once again had the jury leave the courtroom and 0:23:40.000 --> 0:23:44.840 asked Kevin Henry's solicitor and barrister whether they wished for 0:23:44.920 --> 0:23:49.919 a separate trial. Kevin henry solicitor and barrister left the 0:23:49.960 --> 0:23:54.800 court to speak with Kevin Henry, and I will read 0:23:54.840 --> 0:23:59.200 from the transcript what happened when they returned, your honor. 0:23:59.240 --> 0:24:03.880 I apologize for being longer than I anticipated. We notoriously 0:24:03.920 --> 0:24:08.040 tend to underestimate time. So this is mister Murray talking 0:24:08.080 --> 0:24:10.720 about the length of time it took him to speak 0:24:11.720 --> 0:24:15.240 to mister Henry and explain what the judge was recommending. 0:24:16.000 --> 0:24:20.280 So mister Murray continues, I understand your honor's remarks to 0:24:20.320 --> 0:24:24.040 be directed towards the material that the jury heard yesterday 0:24:25.440 --> 0:24:29.200 in relation to the first record of interview of Susan Albury. 0:24:29.680 --> 0:24:33.800 So there he's saying about what the judge said to 0:24:33.840 --> 0:24:37.840 the jury about ignoring what Susan Aubrey had said in 0:24:37.920 --> 0:24:42.880 that first interview. But mister Murray went on and continued, 0:24:44.240 --> 0:24:47.680 after reviewing the trial thus far and the material that's 0:24:47.680 --> 0:24:51.120 gone before the jury, the decision has been taken by 0:24:51.240 --> 0:24:55.720 my client after discussion with my instructing solicitor and I, 0:24:56.359 --> 0:24:59.720 that he would not seek your Honor's discretion to separate 0:24:59.720 --> 0:25:03.399 the charges on the indictment, to seek that this trial 0:25:03.520 --> 0:25:07.800 be aborted, and he will continue on charge on the 0:25:07.840 --> 0:25:11.480 indictment with the two others accused. I thank your Honor 0:25:11.640 --> 0:25:17.280 for your consideration. So to explain that briefly, mister Murray 0:25:17.320 --> 0:25:21.040 has come back having spoken with the solicitor for Kevin Henry, 0:25:21.200 --> 0:25:25.480 and Kevin Henry put it to Kevin that he could 0:25:25.560 --> 0:25:30.400 have the trial that has currently gone on be aborted 0:25:30.840 --> 0:25:34.280 and a new trial started afresh without any of the 0:25:34.320 --> 0:25:38.679 evidence that had been prejudicial against mister Henry, that should 0:25:38.720 --> 0:25:42.880 not have been allowed in that had slipped through. Primarily 0:25:42.920 --> 0:25:47.200 that relates to Susan Aubrey's statement, but it also related 0:25:47.280 --> 0:25:51.920 to some of the forensic material. And yet we are 0:25:51.960 --> 0:25:56.480 told that Kevin Henry did not wish to have the 0:25:56.560 --> 0:26:00.240 trial aborted and that he wanted to continue. There is 0:26:00.320 --> 0:26:04.320 only a few things that could have happened. A Kevin 0:26:04.359 --> 0:26:08.359 Henry understood exactly the legal arguments that were being put 0:26:08.400 --> 0:26:13.679 to him. B Kevin Henry did not understand the legal 0:26:13.800 --> 0:26:16.760 arguments that were being put to him and what was 0:26:16.800 --> 0:26:22.800 going on or c They were not correctly explained to him. 0:26:23.359 --> 0:26:26.840 Understanding that Kevin Henry, at the time and to this 0:26:26.960 --> 0:26:33.800 day is illiterate, had no training whatsoever in the legal system. 0:26:34.240 --> 0:26:38.080 And here we are dealing with a highly complex matter 0:26:39.080 --> 0:26:43.360 that the lawyers seemed to not understand so much that 0:26:43.400 --> 0:26:46.480 the judge was having to instruct them to go off 0:26:46.560 --> 0:26:49.919 and think about it. This wasn't a one off. The 0:26:50.040 --> 0:26:53.840 judge had offered this up multiple times until the judge 0:26:53.840 --> 0:26:58.600 became so concerned he instructed the solicitor and the barrister 0:26:59.000 --> 0:27:01.880 to take this to get Kevin Henry, and I would 0:27:01.880 --> 0:27:04.800 put it to you that the system failure here is 0:27:04.800 --> 0:27:09.240 that mister Henry did not understand what was going on, 0:27:09.760 --> 0:27:12.880 that it was not properly explained to him that this 0:27:12.960 --> 0:27:15.800 trial could be aborted and that he could have a 0:27:15.840 --> 0:27:19.760 fresh trial where he would be the only accused in 0:27:19.800 --> 0:27:22.800 the dock, and none of the evidence that had been 0:27:22.880 --> 0:27:27.359 heard by the jury that was now dismissed would be presented. 0:27:27.680 --> 0:27:30.640 It would be a fresh slate without any of that 0:27:31.040 --> 0:27:35.359 confusion allowed to continue. But in the clear confusion that 0:27:35.600 --> 0:27:40.160 must have gone on, perhaps some even suggested to mister Henry, 0:27:40.359 --> 0:27:44.719 remember remembering he was in prison all this time, that 0:27:44.800 --> 0:27:48.480 he would spend more time on remand and more time 0:27:48.520 --> 0:27:51.479 in custody if he was to have a fresh trial, 0:27:51.880 --> 0:27:55.320 and maybe he should just let this continue. And if 0:27:55.359 --> 0:27:59.199 that's the case, if Kevin Henry didn't want to spend 0:27:59.320 --> 0:28:02.919 more time I'm in prison to see a new trial 0:28:03.000 --> 0:28:07.040 come about, having already waited six months, and if it 0:28:07.080 --> 0:28:10.280 had not been properly explained to him that this trial 0:28:10.400 --> 0:28:13.840 could be aborted and that it would be favorable for 0:28:13.920 --> 0:28:19.320 a new trial to commence, this was a total system failure. 0:28:19.880 --> 0:28:24.240 Mister Henry was not able to give proper instructions because 0:28:24.240 --> 0:28:27.440 he didn't have the capacity to do so, just as 0:28:27.440 --> 0:28:30.960 he was denied that capacity in the first and second 0:28:31.040 --> 0:28:35.320 interviews he gave police where he himself asked for legal 0:28:35.480 --> 0:28:39.400